State v. Michael A. Daniel ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 2000 March 31, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) M1998-00092-CCA-R3-CD
)
Appellee, )
) DAVIDSON COUNTY
VS. )
)
MICHAEL A. DANIEL, ) HON. FRANK G. CLEMENT,
) JUDGE
Appellant. )
) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
DAV ID L. RA YBIN PAUL G. SUMMERS
SunTrust Center, Suite 2210 Attorney General and Reporter
424 Church Street
Nashville, TN 37219 LUCIAN D. GEISE
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
EDWARD S. RYAN
Assistant District Attorney General
Washington Square, Suite 500
Nashville, TN 37201-1649
OPINION FILED ________________
SENTENCE MODIFIED
DAVID H. WELLES, JUDGE
OPINION
The Defendant appeals from the sentences imposed by the trial court. He
was convicted, upon his pleas of guilty, of three counts of vehicular homicide by
intoxication. The trial judge sentenced him to three concu rrent terms of twe lve
years in the Department of Correction. On appeal, the Defendant argues that the
trial court erred in its application of certain enhancem ent factors, and the refore
the sentence of twelve years for each conviction is excessive. We modify the
senten ces imp osed b y the trial cou rt.
The Defe ndan t's con victions are the result o f the viole nt collision of two
vehicles which occurred on Donelson Pike in Nashville at approximately 1:25
a.m. on November 23, 1997. A pickup truck driven by the Defendant crossed the
center line of the ro adway into onco ming tra ffic and co llided hea d-on with a
Volkswagon Beetle in which three young men were traveling. Two of the young
men were pronounced dead at the scene of the acc ident. The third young man
died shortly thereafter at the hospital. A blood sample drawn from the Defendant
appro ximate ly one hour after the collision showed a blood alcohol content of .18
percen t.
The Defendant pleaded guilty to three counts of vehicular homicide as the
proximate result of intox ication, ea ch offens e being a Class B felony. 1
Sentencing was left to the discretion of the trial judge. After conducting a
sentencing hearing, the judge sentenced the Defendant on each count to twelve
years in the Department of Correction to be served as a Range I offender, which
1
See Tenn. Code Ann. § 39-13-213.
-2-
is the maximum term authorized by law for each of for the Defendant's crimes.
The sentences were ordered served concurrently. It is from the sentences
imposed by the trial court that the Defendant appeals.
When an accused challenges the length, range, or manner of service
of a senten ce, this Co urt has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are co rrect.
Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
When conducting a de novo review of a sentence, this Court must
consider: (a) the e videnc e, if any, received at the trial and sentencing hearing; (b)
the presentence report; (c) the principles of sentencing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of
potential for rehabilitation or treatm ent. State v. Thomas, 755 S.W.2d 838, 844
(Tenn . Crim. A pp. 198 8); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
If our review reflects that the trial court followed the statutory sentencing
procedure, that the court imposed a lawful sentence after having given due
consideration and proper weight to the factors and principles set out under the
sentencing law, and that the trial court’s findings of fact are adequately supported
by the record, then we may not modify the sentence even if we would have
-3-
preferred a different res ult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991 ).
At the sentencing hearing the State presented testimony and other
evidence concerning the deadly and tragic collision which occurred when the
Defe ndan t's vehicle crossed the center line and struck the victims' vehicle.
Testimony from members of the victims' families and letters submitted by other
mem bers of the victims' fam ilies were re ceived into evidence, demonstrating the
great personal loss suffered by the victims' families as a result of the Defe ndan t's
actions. All three victims had very promising future s. Two of them were law
students at Vand erbilt University. The trial judge noted that the Defendant had
caused the death of “three very bright shining stars.” From our review of the
record, this characterization appears to be entirely accurate.
At the time of sente ncing the De fendant was thirty-nine yea rs old. H e is
a high school graduate who has also received extensive vocational training. The
presentence report reflects that the Defendant is married and has two children,
who, at the time of sentencing, were eight and eleven years old. At the time of
sentencing the De fenda nt had been emp loyed a t the N issan Motor Manufacturing
facility in Smyrna for over thirteen years. Prior to that he was employed at Allad in
Industries for seve n year s. His prior crimin al history co nsists of a conviction for
DUI in 1991.
The Defe ndan t's supervisor at the Nissan Motor Manufacturing Company
testified that the Defendant was an excellent employee, who was dependable and
capable. Members of the Defendant's family testified in suppo rt of the De fendan t.
-4-
He was described as a very caring and hard-working family member who was a
good provider for his family. These witnesses also testified concerning the
feelings of remorse and regret which the Defendant has for his crimes.
The Defendant also presented testimony from Dr. William H. Ander son, a
licensed clinical psychologist. Dr. Anderson testified that he performs work as an
alcohol and dru g abus e coun selor. The De fendant was referred to Dr. Anderson
by his attorney shortly after the accident. Dr. Anderson testified that the
Defendant was remorseful and suffered from depression concerning the deaths
of the victims. Dr. Anderson stated that he had pe rformed certain tests, had
evaluated the Defendant, and had diagnosed him as a probable alcoholic. He
said the Defendant was very receptive to his counseling and his treatment for the
disease of alcoholism. He stated that the Defendant never missed an
appoin tment, that the Defendant had beco me in volved in Alcoholics Anonymous
and tha t the Defe ndant re maine d in a “reco very prog ram.”
The Defendant testified at his sentencing hearing. He stated that on the
Saturday immediately preceding the accident he had worked his usual twelve-
hour shift at Nissan, as he had also done the preceding Friday. He had also
worked overtime on Wednesd ay and T hursda y of that we ek and was go ing to
school part-tim e at Na shville S tate T echn ical Inst itute du ring this period of time.
That Saturday morning, he had gotten u p at about 4:40 a.m. and rep orted to work
at 6:00 a.m . His shift that Saturday evening ended about 6:30 p.m. A group of
family members and friends were having a party that evening. After h e got off
from work he decided to attend the party, even though he was tired. He arrived
at the party a round 8 :30 p.m . He said that during the approximate four-hour
-5-
period he was at the party, he consumed about five mixed daiquiri drin ks. He left
the party some time after m idnight an d started on the ap proxima te eighte en-m ile
drive back to his home. H e was abo ut five miles from his home when his truck
collided with the volkswagon. The Defendant expressed his remorse for his
crime s and desc ribed th e effec t the eve nts ha d on h is life. He said that he had
become convinced that he was an alcoholic and stated that he had not consumed
any alcohol since the night of the tragic accident which took the lives of the three
young men.
For sentencing purposes, the Defendan t clearly meets the c riteria for a
Range I standard offender. As noted by the trial judge, the sentencing range
established by our leg islature for a Rang e I standa rd offend er convic ted of a
Class B felony is a minimum of eight years and a maximum of twelve years.
Tenn. Code Ann. § 40-3 5-112(a)(2). If there are no enhancement or mitigating
factors, the presumptive sentence is the minimum sentence in th e range . Id. §
40-35-210(c). If there are enhancement and mitigating factors, the sentencin g
court must start at the minimum sentence in the range, enhance the sentence
within the rang e as ap propriate for the statutory enhancement factors, and then
reduce the sentence within the range as appropriate for the statutory mitigating
factors. Id. § 40-35 -210(e). If there are enhancement factors but no mitigating
factors, then the court may set the sentence above the minimum but still within
the rang e. Id. § 40-35-21 0(d).
In sentencing th e Defend ant to the ma ximum term of twelve years for each
offense, the trial judge found and applied three enhancement factors: (1) that the
Defendant has a previous history of criminal convictions or crimin al beh avior in
-6-
addition to those nece ssary to establish the appropriate ran ge; (2) the offense
involved more than one victim; and (3) the Defendant had no hesitation about
committing a crime when th e risk to hu man life w as high. Id. § 40-35-11 4(1), (3),
(10).
The Defenda nt's prior conviction for DUI supports application of the first
enhancement factor because it establishes the Defendant's history of one
previous criminal conviction. The Defendant concedes that the trial judge was
correct in a pplying this enhan ceme nt factor. See id. § 40-35-11 4(1).
The Defendant argues that the trial judge erred in applying as an
enhancement factor that the offense involved more than one victim. Id. § 40-35-
114(3 ). He a rgues that this enhancement factor cannot apply because there is
a separate conviction for each of the victims of vehicular h omic ide. The State
concedes that the trial court erred by applying this enhancement factor. T his
Court has consistently held that this factor may not be applied to enhance a
sentence when a Defen dant is separately convicted of the offense committed
against each victim . State v. Lam bert, 741 S.W.2d 127, 134 (Tenn. Crim. App.
1987); State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 19 95); State v.
Freeman, 943 S.W .2d 25, 31 (Tenn . Crim. A pp. 199 6). We must therefore
conclude, as the State conce des, th at the tria l judge erred in applyin g this
enhance ment factor.
The Defe ndan t also argues that the trial judge erred by applying the
enhancement factor that the Defendant “had no hesitation in committing a crime
-7-
when the risk to hum an life was high.” Tenn. Code Ann. § 40-35-114(10). The
trial judge e xplained his applica tion of this en hance ment fa ctor by statin g,
Now the crime was the drinking and then driving and the reason you
can't do that is that after you have been drinking, then you are no
longer in the position of making an informed decision of should I
drive. Then the crime, you can't say, well, I had been drinking too
much and, th erefor e, I really d idn't know that I shouldn't have been
driving; that doesn't work and that is an enhancement factor. So
that, too, wo rks aga inst the de fendan t.
It appe ars from the trial ju dge's comments that h e app lied this
enhancement factor to the Defendant's conviction for vehicular homicide based
upon the Defe ndant's a ctions of d riving while u nder the influence of an intoxic ant.
Our legislature has clea rly recogn ized that D UI is a ser ious offen se. It is one of
the few offenses, other than Class A felonies, which carries mandatory jail time.
See id. § 55-10-403. Furthermore, beginning in 1995, our legislature provided
that when a vehicular homicide occurs because of a driver's intoxication, the
offense is a Class B felony, punishab le by a sentenc e range of eigh t to twelve
years for a stand ard offen der. See id. §§ 39-13-213(b), 40-35-112(a)(2). For the
same offender, vehicular homicide which is not the result of intoxication is a
Class C felony, punishable by a range of three to six years. See id. §§ 39-13-
213(b), 40-35 -112(a)(3).
Our legislature has also provided that statutory enhan cemen t factors may
be applied if ap propriate for the offen se, but enhancement factors may not be
applied if the factors are “themselves essential elements of the offense as
charged in the indictment.” Id. § 40-35-114. To the extent that the trial judge
enhanced the Defendant's sentence based upo n his co nduc t in driving while
under the influence of an intoxicant, we must conclude that the judge erred. The
-8-
legislature cons idered driver in toxicatio n as a sente nce e nhan cer wh en it
increased the sentencing range for vehicular homicide by reason of intoxication
from a rang e of thre e to six ye ars to a range of from eight to twelve ye ars. W e
do not believe the legislature intended that the same conduct be cons idered to
again enhance a defendant's sentence within the range.
Nevertheless, this Court has held that enhancement factor (10) may be
prope rly considered if the Defendant's crime created a high risk to the lives of
individu als other tha n the victim (s). See State v. Bingham, 910 S.W.2d 448, 452-
53 (Tenn. Crim. A pp. 199 5); State v. Lam bert, 741 S.W.2d 127, 134 (Tenn. Crim.
App. 1987). At the time the Defendant's vehicle collided with the victims' vehicle,
two friends of th e victims w ere travelin g in a sep arate veh icle in the lan e next to
the victims' Volkswagon. The driver of the other vehicle testified that he saw the
Defe ndan t's truck veer into the lane in which the Volkswagon was traveling. He
stated that it happened “all of a sudden” and that it startled him when he saw the
truck. He said that he had to swerve and that he “saw the truck hit the
volkswa gon.” Based on our review, we conclude that the rec ord doe s supp ort a
finding that the D efendant created a high risk to th e lives o f the two individu als
traveling in this vehicle.
In this case, if there were no enhancement factors applicable to the
Defendant's sente nces, our law would mandate a sentence of eight years for
each conviction. The trial judge applied three enhancement factors and
sentenced the Defenda nt to the maxim um of twelve ye ars for each offense. W e
have conclud ed that the trial judge er red in his a pplication of one of th e three
-9-
enhancement factors. We conclude that the judgm ent of the trial court should be
modified to reflect a sentence of ten years for each conviction.
______________________________
DAVID H. WELLES, JUDGE
CONCUR:
________________________________
JERRY L. SMITH, JUDGE
________________________________
THOMAS T. WOODALL, JUDGE
-10-